Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor [2011] NSWLEC 1336

Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor [2011] NSWLEC 1336

Only T2 and T3 satisfied s 14A(1) because they could be construed as planted so as to form a hedge; T4, T5 and T6 were individual specimen trees and therefore outside the Court's jurisdiction. The claimed obstruction of sunlight failed because the Act concerns direct sunlight, not ambient light, and the south-facing nominated windows would not receive direct sunlight in any event. For the Ghenzer application, even accepting severe obstruction of a view from V1 by T2 and T3, the discretionary matters under s 14E(2)(b) and s 14F did not justify intervention because of the trees' consent-related planting, ecological contribution, privacy and screening value, the limited bedroom viewing...

Jurisdiction
Australia
Judgment Date
23 November 2011
Procedural Posture
Class 2 Applications Pursuant to S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Applications dismissed
Legal Topics
['neighbouring Trees' 'hedge' 'obstruction of Views' 'obstruction of Sunlight' 'jurisdictional Tests Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes' 'land and Environment'] ['neighbouring Trees' 'hedge' 'obstruction of Views' 'obstruction of Sunlight' 'jurisdictional Tests Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Applications Pursuant to S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ['Whether the trees were groups of 2 or more trees planted so as to form a hedge under s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees severely obstructed sunlight to windows of the applicants' dwellings under s 14E(2)(a)(i)." "Whether the trees severely obstructed views from the applicants' dwellings under s 14E(2)(a)(ii)." "Whether the applicants' interest in removing, remedying or restraining any obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b)."]

Ratio Decidendi

Only T2 and T3 satisfied s 14A(1) because they could be construed as planted so as to form a hedge; T4, T5 and T6 were individual specimen trees and therefore outside the Court's jurisdiction. The claimed obstruction of sunlight failed because the Act concerns direct sunlight, not ambient light, and the south-facing nominated windows would not receive direct sunlight in any event. For the Ghenzer application, even accepting severe obstruction of a view from V1 by T2 and T3, the discretionary matters under s 14E(2)(b) and s 14F did not justify intervention because of the trees' consent-related planting, ecological contribution, privacy and screening value, the limited bedroom viewing...

Court Disposition

Applications dismissed

Orders

  • ['Application 20921 of 2011 is dismissed.' 'Application 20925 of 2011 is dismissed.']